The pandemic has made it more difficult for people to get many things, from toilet paper to disinfectant wipes to something not available on shelves: public records.
During the COVID-19 pandemic, it is taking longer for people to get information through public records requests, and disputes over records are taking longer to resolve, according to Lisa Kershner, the state’s public access ombudsman.
Just 24% of cases involving disputes between agencies and requesters over public records were resolved within three weeks during the first six months of 2020, down from 44% in 2019, according to a report from the ombudsman, which was discussed at a Wednesday meeting of the Maryland House of Delegates' Government Operations and Facilities Subcommittee. Just 37% of cases are being resolved within six weeks this year, compared with 73% in 2019, according to the report.
Delays can mean that time-sensitive records are no longer useful by the time they’re received, Kershner said in an interview with The Baltimore Sun.
“Delays can defeat the purpose of the [public information] act, which is to inform people of government actions in a timely way,” Kershner said.
The delays stem from the fact that the pandemic has forced agencies to work remotely and redeploy staff to new tasks due to new needs, and information technology staffs have been overwhelmed with training employees for remote work, Kershner said. Some of the delays also stem from Gov. Larry Hogan’s move to allow agencies to extend records request deadlines amid the pandemic’s state of emergency, she said, which some agencies have invoked.
The vast majority of agencies are still “at least trying” to respond to requests, she said. But one agency is not answering requests, which Kershner said she couldn’t identify due to privacy obligations.
Not all agencies are suffering from delays on all requests, she added, saying it depends a lot on a particular agency’s circumstances. Those with more robust pre-pandemic records operations have fared better.
The data reflects cases that the ombudsman’s office — an organization with no enforcement power that helps resolve disputes between agencies and requestors — has been involved with. Court battles can be prohibitively costly for many, leaving many to turn to the ombudsman’s office to resolve disputes.
Just 10% of requests for mediation have come from the media in 2020.
The pandemic also stalled a bill that its proponents say could help transparency in the state. House Bill 502 would expand the scope of another agency tasked with resolving public record disputes, one with enforcement power but a limited scope: the Public Information Act Compliance Board, composed of volunteers. The board’s chair, John West, and Kershner urged legislators to seriously consider the bill.
The bill would require unresolved disputes from the ombudsman’s office to go before the compliance board, broadening its authority.
Darren Wigfield, a member of the PIA Compliance Board, said he has seen too many records request disputes go unresolved because of the ombudsman’s office’s lack of enforcement power and the compliance board’s lack of scope. That lack of scope means many disputes end up unresolved, as the ombudsman can’t force agencies to take action, leaving the courts as the remaining option, which can be costly.
“There’s a large gap here that is going unfilled,” Wigfield said. “We believe the bill would resolve those issues by allowing our board to respond to those requests.”
“They’d have more motivation to work with the [ombudsman’s] office to get it resolved in an amicable way before having to come before our board, which would have actual enforcement powers,” Wigfield said.
Wigfield says that under the bill, the board could remain a voluntary agency, even with a projected caseload increase. The board has gotten less caseload than anticipated when it was established, he said.
The bill would also call upon agencies subject to the public records requests to maintain data on requests and to make it public.
“This is a recommendation that will lead to much greater knowledge and awareness about the importance of the act and the level of requests that agencies are dealing with,” Kershner said. “It should help to frame future improvements to the act, because a lot more will be known about what is actually going on.”
Del. Brooke Lierman, a Baltimore City Democrat who sponsored the bill, said it would help create more transparency in government agencies. She says she plans to pre-file the bill for the next legislative session by a Sunday deadline.
“It’s about lowering barriers to achieving transparency and ensuring that citizens, the press, or anybody who wants access to public information, has reasonable access to it,” Lierman said. “We want to have a state policy that articulates our desire to proactively disclose information."